Does Brown v. Bd. of Ed. "disfavor a religion"?

[Robert Justin Lipkin]

In a message dated 10/4/2002 6:00:06 PM Eastern Daylight Time,
VOLOKH at mail.law.ucla.edu writes:


> The government may not shut down churches that conscientiously believe that
> violence is required to rid the world of heretics, nor, in my view, may it
> deny them charitable tax exemptions, so long as they simply believe and not
> act.

       Just one last try.  What if religion X defines 'church' has the
practice of religious doctrine including killing heretics. Even if this is a
minority use of the word 'church' and it is at best a minority use, we can
hypothetically imagine a religion that defines 'church' in this manner.
Consequently, if we agree to prevent Xists from killing heretics, we are not
only disfavoring the X religion, but are discriminating against Xism by
disallowing the building of its churches (Because X defines 'church'
bizarrely as not only a building but as including the religious practice
itself, and so disallowing the practice of killing also precludes Xists from
building churches). Now Eugene is surely right to reply that this is an
atypical use of 'church.' But what it shows is that whether we accept a
principle of preventing closing down the churches of unreasonable religions,
depends quite straightforwardly on how the religion defines its values and
the terms of its religious discourse.  We are blessed, I've been asserting,
because American religions are pretty tame, that is, reasonable and accept
the common meaning of the key religious and constitutional terms.  But the
rather bizarre example above indicates that neutrality exists only when the
religions in question are tame, not when the terms of the conflict between
the religions are contested in central ways. So with these remote examples in
play Eugene must withdraw his claim that he accepts a principle of
nondiscrimination against  the churches of unreasonable religions; judging
from his remarks, he cannot accept nondiscrimination  not when the religious
defines 'church' in a manner which includes the acting out the violence which
Eugene clearly eschews. Arcane religious reinterpretations of  key
religious/constitutional terms precludes Eugene logically from accepting the
neutrality principle without committing himself to principles (of violence
and brutality) that I do not think he accepts.  Of course, Eugene could
(should) reply that these examples are bizarre in the extreme, and therefore
uninteresting.  They are bizarre, but there interest lies in revealing that
neutrality assumes much more about the consensus in religious values and
religious meaning than most people acknowledge.

Bobby Lipkin
Widener University School of Law
Delaware.


Bobby Lipkin
Widener University School of Law
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